Cara’s dad assigned her authority to help him with his finances and health care decisions when he made Cara his agent with a Power of Attorney and Health Care Directive. His health has declined over the last few years, and his ability to keep track of complex facts and figures is compromised – he knows it. And, so does Cara. They talk and decide “it’s time” for a little assistance once in awhile. All goes well for a few years. Cara steps in as needed and keeps an eye on dad when she can. Then, she starts noticing dad’s checkbook is a little disorganized. He’s forgotten to write down amounts and dates, he seems to be withdrawing large sums of cash from his bank accounts and then forgetting where it is or if he even still has it(!) He’s forgetting to eat meals and seems unable to remember if he’s taken his medication for the day. And, he’s taken to taking long walks and getting lost – in very unsafe situations. But, he doesn’t want to move out of his apartment, and he doesn’t want to take his medication for a life-threatening condition because it makes him drowsy. Cara has the documents she needs to step in, but as long as dad can still live alone, he’ll continue to make decisions, too – wandering and getting lost, taking out large withdrawals of his limited resources, and making poor choices for his health and safety. The two documents she’s got won’t stop dad from making dangerous decisions for himself.
I spend a lot of time advising Minnesotans to get their foundational estate plans in order – young, old, married, single, with kids and without – it’s important. For most people, making some sort of transfer of asset plan for after death (wills and/or trusts) is only the beginning. It should continue with life planning as well, meaning powers of attorney (POA) and health care directives (HCD).
If you need to start with an explanation of those last two documents, go back to the archives of posts and use key-word searches to get a handle on the basics first. This entry is for those who understand the value of those documents and want to know when and why a POA or HCD may not be enough.
When a POA stops being enough, it usually becomes a conservatorship (the handling of someone’s estate and property). When a HCD stops being enough, it usually becomes a guardianship (the handling of someone’s person, physical needs, and health care). What’s the difference? How many people have the authority to make decisions.
With either of these two documents (POA or HCD), the person who makes the appointment (the principal) is ADDING an additional person (the agent) to the list of people with authority to make decisions for the principal.
+ the agent
= 2 with authority (the principal can still make decisions for him/herself).
When a guardian or conservator is assigned, it SUBTRACTS the principal’s authority. In other words, the principal (who is now called a Ward or Protected Person) no longer has the authority to make his or her own decisions.
The agent (now the conservator/guardian)
– the principal (now the protected person/guardian)
= 1 person with authority (the ward/protected person cannot make decisions for him/herself, at least not all of them).
You can now see why this becomes necessary for a court to get involved with such proceedings – a person is actually denied their constitutional right to make their own decisions about where to live, what to wear and eat, and how to spend their money, just for starters. Thus, any person petitioning a court to have such authority over someone else must first prove with clear and convincing evidence that 1) the person in question actually needs the help (they’re incapacitated, such that it makes things unsafe for them and/or their estate/property), 2) that it’s the least restrictive form of help possible (there aren’t any better options to preserve at least some of the person’s right to make decisions for him/herself), and 3) that the person asking for the authority is the most suitable to have this authority (has everyone who has an interest in this person’s welfare had a chance to volunteer and is there anyone better for the job?). You can imagine, the hearing is not private, it’s by necessity quite revealing of potentially embarrassing or undignified behavior, and can be quite hurtful for the parties involved. That said, there are times when it is absolutely necessary and cannot be avoided – for the safety of the person in question and/or their property.
So, when is a POA or HCD not enough? When two people having the authority to make decisions is one too many (meaning, one person of the two is no longer able to realistically exercise good judgement on behalf of their person or their property). You will likely know when it is time to exercise this very difficult decision. But, even if you’re not sure, this is the point at which an attorney can assist you: with the petition, with your interaction with the court, and making sure you’ve thought through all the alternatives and understand your duties and expectations.This blog is written by Bridget-Michaele Reischl, Attorney DECORO LAW OFFICE, PLLC www.decorolaw.com